Opinion
C093321
10-19-2021
In re N.C., a Person Coming Under the Juvenile Court Law. v. M.C., Defendant and Appellant. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. JD239215
BLEASE, ACTING P. J.
Appellant M.C., the minor's grandmother, appeals from the juvenile court's order terminating further reunification services. She argues the court erred when it found a substantial risk of detriment to the minor if he were returned to grandmother's care. In particular, grandmother asserts the court's finding was not supported by substantial evidence. We will affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2018, the Sacramento County Department of Child, Family and Adult Services (Department) received a report that the minor's grandfather had "engaged in a violent fight with six Sacramento police officers" near a motor home in which grandfather, grandmother, and the minor were living. Grandmother and the 11-year-old minor were present for the fight, and police instructed grandmother to take the minor inside the motor home, but grandfather told her to keep him outside because the minor needed to "[s]ee what the cops do." The minor was crying and upset. The police arrested grandfather and placed the minor in protective custody. When a social worker interviewed grandmother, she stated the three had been homeless for the past year and denied any substance abuse problems.
In March 2018, the Department received a report that grandmother and grandfather had been in an argument, and grandfather had "threatened to burn down the trailer" with grandmother and the minor inside. The report stated grandfather was yelling at grandmother over money she "blew [] on dope," and grandmother responded that "she did blow the money on dope [but] only because he wanted her to." The family dog attacked grandfather and grandfather tried to stab the dog with a pocketknife. The police once again took the minor into protective custody.
The next day, grandmother met with a social worker and signed up for informal supervision, which included services aimed at treating substance abuse. Grandmother took a drug test and tested positive for amphetamine/methamphetamine. She initially denied taking any illegal substances and claimed the positive result was the result of taking Zantac, but later admitted she had used methamphetamine with grandfather two days earlier. Grandfather also tested positive for methamphetamine. Approximately one week later, grandmother denied grandfather used methamphetamine, and claimed his positive result was caused by an energy drink. Grandmother stated she was willing to take drug tests, although she used marijuana for medical reasons.
In April 2018, the police impounded the motor home, so grandmother and grandfather began living in a tent. One week later, at a child family meeting, grandfather expressed reluctance to participate in services, and social workers warned grandmother it would not be safe to return the minor if grandfather would not participate in services. Grandmother stated she would separate from grandfather. Later in the month, the two moved into a hotel room using grandfather's veteran benefits.
In May 2018, grandmother and grandfather were living in a tent. A social worker offered grandmother assistance in finding a homeless shelter, but grandmother refused, saying there were no shelters that would allow her to keep her dog.
In early July 2018, grandmother had complied with the drug treatment program and had received negative drug tests, although she received some "noncompliance reports" for failing to attend support meetings. Later that month, grandmother received a positive drug test for methamphetamine. Grandmother denied she had used methamphetamine and claimed she had taken Zyrtec, which caused the positive result. A later screen from a toxicology lab confirmed the use of methamphetamine.
In August 2018, the Department filed a petition under Welfare and Institutions Code section 300. The petition alleged grandmother had a long-standing substance abuse problem dating back to 2004, which had impaired her ability to provide care for the minor. The petition alleged grandfather had similar problems, along with a pattern of "instability and confrontational behavior." The juvenile court determined the minor came within the provisions of section 300 and ordered him detained. The court also ordered reunification services.
Undesignated statutory references are to the Welfare and Institutions Code.
Later that month, the Department filed a jurisdiction/disposition report, in which it noted grandmother had a history with child protective services in Oregon with respect to the minor's mother, dating back to 1996. An October 2018 addendum to the report explained grandmother had been required to complete a 30-day inpatient program for drug and alcohol abuse as part of the Oregon services. Grandmother asserted she had not used methamphetamine since March 2018.
In November 2018, the Department filed a second addendum, reporting that grandfather continued to refuse services. When a social worker encouraged him to participate, grandfather began to yell and the social worker was concerned grandfather would attack him. Grandmother had received negative results in her drug tests, beginning in September, and had been participating in counseling, with some absences.
In December 2018, the juvenile court sustained the allegations in the petition and took jurisdiction over the minor under section 300. In particular, the court noted grandmother "has had an issue with methamphetamine for some time . . . the fact that she's had two positive tests, one could definitely argue that she relapsed, despite the fact that she alleges that she only did once." Grandmother's case plan included, among other things, parenting education, identification of safe and suitable housing, and substance abuse counseling, treatment, and testing.
In March 2019, the Department filed a progress report indicating grandmother had met with a housing specialist and was on a waiting list for housing placement but was still living in a tent with grandfather. She had completed parenting education and had tested negative on her drug tests. Grandfather refused to participate in services and said it would be acceptable if grandmother received sole physical and legal custody of the minor.
By the time of the six-month review hearing, in May 2019, the Department reported grandmother had applied for a different housing program. Grandmother continued receiving negative drug test results and was participating in dependency drug court. At the hearing, the court determined grandmother's progress was fair, but grandfather's progress was minimal. The court ordered continued reunification services.
By the 12-month review hearing in November 2019, the Department reported grandmother was eligible for a Section 8 housing voucher, but grandmother was required to provide ID and a social security card for the voucher. The housing worker reported he had told grandmother about the requirement "a long time ago," but grandmother had not provided the documents. A worker for a different housing program reported the pair was no longer enrolled in the program because they had been "extremely verbally abusive towards their case manager" and "refused to downsize items from their RV to move into interim housing." The housing program manager stated they had "never had such a combative and hostile client before." Grandmother and grandfather were still living together in a tent.
Grandmother was drug testing twice per month, with negative results. She had completed dependency drug court and transitioned to the substance abuse aftercare program, with which she was largely compliant, although she occasionally failed to attend the required number of support group meetings.
At the 12-month review hearing, grandmother's counsel explained grandmother intended to remain in a relationship with grandfather, although "things could change . . . if his services are terminated and [] she understands she cannot reunify in that situation." The court terminated grandfather's guardianship of the minor, noting it had previously warned grandfather about his refusal to participate in services. The court "reluctantly" continued services for grandmother. Noting her continuing relationship with grandfather, the court warned grandmother that "you were very close to having your services and your probate guardianship terminated today. That's something that I want you to think about going forward."
The 18-month review hearing was continued multiple times because of the COVID-19 pandemic and was not held until December 2020. In the interim, in June 2020, grandmother moved to a motel. Although she still had contact with grandfather, she stated that he was living in a tent, and would not be living with or visiting her.
In August 2020, the minor's case manager conducted a Zoom visit with grandmother in the motel room and heard grandfather's voice in the background. Grandmother denied that grandfather was in the room. In October 2020, the Department referred grandmother for a drug test, which came out positive for methamphetamine. Grandmother denied using methamphetamine, although later lab results indicated she tested positive for methamphetamine on October 23 and November 10, but negative on October 14.
The Department noted that although grandmother had completed her court ordered services, it was concerned that she would continue to have contact with grandfather and her recent drug test results suggested she was still using methamphetamine. Thus, the Department recommended the court terminate grandmother's reunification services.
At the section 366.22 hearing in December 2020, grandmother testified she had been the minor's guardian since 2011. She explained she had completed all court ordered services, including parenting classes, substance abuse counseling and treatment, and was currently preparing for conjoint counseling with the minor. She asserted she had been "clean and sober" for over a year and a half, and denied using methamphetamine. She acknowledged missing recent drug tests because of scheduling conflicts and transportation problems. She stated she was still living in a motel and was searching for a more permanent place to live. She separated from grandfather "[b]ecause the judge wanted it for me to get [the minor] back," and said if the minor was in her care, she would not allow any unauthorized visits from grandfather.
The juvenile court ultimately terminated reunification services for grandmother. In its ruling, the court reviewed grandmother's history in the case, noting she had "performed poorly during informal supervision and continued to test positive for methamphetamines." She did well in drug court and "was compliant during the majority of the case." However, "[s]he had not been [drug] tested for some time," and then "tested positive on October 23rd of 2020 and November 10th of 2020." Thus, although grandmother had "completed her case plan . . . it appears that she still has problems with abusing methamphetamine."
The court also expressed concern about grandmother's "relationship with [grandfather]," noting that all of grandfather's issues likely still existed because of his refusal to engage in reunification services. Despite grandmother's testimony that she was no longer seeing grandfather, the court had "serious questions whether she would abide by the Court order to prevent and prohibit [grandfather] from seeing her grandson." The court concluded grandmother was "simply out of time" with respect to addressing her substance abuse issues.
DISCUSSION
Grandmother contends insufficient evidence supported the juvenile court's conclusion that it would be detrimental to return the minor to her care. In particular, she argues her two positive drug tests constituted only a "last-minute stumble" that followed a long period of sobriety, and she had completed all court-ordered requirements. Thus, she reasons, the tests were not adequate to justify the court's decision. We see no merit in grandmother's argument.
Section 366.22, subdivision (a)(1) provides, in relevant part: "After considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child."
Compliance with the reunification plan is "an indicium of progress toward family preservation," but it is not the only consideration in deciding whether a child should be returned to parental custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1140.)" 'The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement. [Citations.]'" (In re E.D. (2013) 217 Cal.App.4th 960, 966.) Ultimately, "the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
"We review the juvenile court's finding of substantial risk of detriment for substantial evidence." (In re E.D., supra, 217 Cal.App.4th at p. 966.) "In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court's order. [Citation.] 'Substantial evidence' means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.)
Here, grandmother was first on informal supervision after she tested positive for methamphetamine in March 2018. She first denied using any illegal drugs, claiming the test result was a false positive resulting from an over-the-counter medication, before later admitting she had used methamphetamine. She continued taking drug tests under informal supervision and received negative results until July 2018, when she again tested positive for methamphetamine. As before, she claimed the result was a false positive, this time because she had taken a different over-the-counter medication. Lab results, however, indicated grandmother had used methamphetamine. Several months later, grandmother continued to insist she had not used methamphetamine since March 2018.
The Department then filed the section 300 petition, which alleged grandmother had longstanding substance abuse problems that impaired her ability to care for the minor. During 2019, grandmother participated successfully in drug dependency court and received negative drug test results through at least September 2019. In October 2020, the Department referred grandmother for a drug test, which gave a positive result for methamphetamine. Grandmother denied she had used any methamphetamine, and had no explanation why she tested positive. She received a second positive test result in November. Although grandmother participated in her court-ordered services and was largely successful in avoiding methamphetamine while under supervision, the evidence was sufficient to show a pattern of participation in services followed by relapse, demonstrating grandmother had not resolved the substance abuse problems for which the minor was originally detained.
Grandmother asserts she received "two years of negative drug tests" between September 2018 and October 2020, but the latest reference to a negative drug test in the record is in the Department's February 2020 permanency review report, which discusses grandmother's drug tests as of September 2019. The July addendum to the report does not include any reference to drug tests, and the December addendum to the report discloses the positive drug test results grandmother received in October and November 2020.
Moreover, the record supported the juvenile court's conclusion that grandmother may not comply with a court order to protect the minor from contact with grandfather. Despite grandfather's consistent refusal to engage in reunification services, and repeated warnings that he was endangering the possibility the minor could remain in his or grandmother's care, grandmother resisted separating from grandfather until June 2020. When she did separate from grandfather, she only did so because his reunification services were terminated and the court told her to do so, and not because grandfather had failed to remedy the issues that had originally endangered the minor in the first place. The trial court could thus reasonably infer both that grandmother's separation was only for appearances and that grandmother had not remedied her impaired judgment, which had been alleged in the petition. And the juvenile court had little reason to accept grandmother's promise to prohibit contact with grandfather, given the fact a case manager had overheard grandfather in grandmother's motel room during a Zoom call, even after she had said grandfather would not visit her, and grandmother's multiple lies about her methamphetamine use. We may not second guess the juvenile court's evaluation of grandmother's credibility on this point. (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
Grandmother cites Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.) and Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) in support of her assertion that her "stumble of two positive drug tests here cannot be taken as substantial evidence to support a finding of detriment." Both cases are distinguishable. In Rita L., the parent had substance abuse issues but took "a Tylenol with codeine prescribed for her adult daughter while suffering in bed with a headache." (Rita L., at p. 498.) The court concluded this one lapse in sobriety did not pose a risk of harm for the children in that case: "This incident is significant only if it is viewed as a likely first step in Rita's backslide into more serious drug use. And while such a progression is always possible, there is little (if any) indication that was happening here. Rita did not ignore or minimize the danger. She made no effort to argue (as some might) that her ingestion of a single prescription pain killer was insignificant. Instead, she discussed the incident with her AA sponsor, the drug testing personnel, and her social worker. Rita was, in other words, quite proactive in addressing the lapse." (Id. at p. 506.)
Grandmother, in contrast, took no steps to address her "stumble"; indeed, she denied she had even used methamphetamine, despite the positive test results. Moreover, the juvenile court's decision was not based simply on the fact that grandmother received two positive drug test results. Rather, her relapse and denial fit a consistent pattern demonstrated over the course of the case. As explained above, grandmother consistently denied or excused her substance abuse, even when confronted with concrete evidence of that abuse. Thus, unlike in Rita L., the juvenile court was justified in concluding that grandmother had not addressed the substance abuse issues that had originally caused the minor's removal.
Similarly, in Jennifer A., the children were removed because the mother left them alone in a motel room while she was at work. There was no evidence this conduct was related to drug use, but the mother was required to submit to testing twice a week as part of her reunification plan. (Jennifer A., supra, 117 Cal.App.4th 1322, at pp. 1343-1344.) All but one of the mother's tests were clean, but she had several missed or diluted tests and one dirty test for marijuana. (Ibid.) Noting that "the purpose of the reunification plan is 'to overcome the problem that led to removal in the first place, '" (id. at p. 1343) the appellate court held that, under the circumstances, evidence of some missed or diluted tests and one positive test for marijuana was insufficient to support a finding that there would be a substantial risk of detriment to the children if returned to the mother's care. (Id. at p. 1346.)
Here, grandmother's substance abuse was one of the primary concerns when the Department removed the minor. Grandmother's repeated relapses over the course of the case demonstrated she had not overcome the substance abuse problem, even if she had largely complied with the technical requirements of the case plan. Thus, neither Rita L. nor Jennifer A. compels a conclusion contrary to that reached by the juvenile court.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: HULL, J., KRAUSE, J.